Clearman v. Clearman.

mother, and he visits the apartments of his wife every day to see the children, and on such visits sometimes sees the plaintiff; but all relations between himself and her have been abandonned by him, despite her earnest entreaties and desire to have him return.

It is very difficult to frame a comprehensive definition. of abandonment as it is used in the section of the Code under consideration. It may be equivalent to desertion; but for the purposes of this case it may be regarded as the cessation by plaintiff from living with his wife, with a fixed determination not to resume such living with her, and the absence of her consent to such separate living and of conduct on her part justifying her husband's withdrawal. In this case all matrimonial relations between the parties have ceased by the act of the defendant. He persists in living separate from his wife, and will not, under any circumstances, as he says, resume living with her. She has not consented to this, but has time and again asked the defendant to change his purpose. The whole evidence evinces an unalterable determination on his part to repudiate all the duties of a husband, except that of contributing to the support of his wife, and the impression the testimony makes on my mind is that he does this for his children rather than for her. But this provision for her support does not relieve him from the charge of abandonment. It is none the less desertion if a husband refuses to live with his wife, although he does support her (Magrath v. Magrath, 103 Mass. 577, 579); and here this support is liable to be withdrawn at any time, although that might be prevented by an order under another section of the Code without a decree of separation.*

I am of opinion that the plaintiff has shown enough to entitle her to judgment, and allowing her the custody of the children, with proper provision as to the defendant visiting them, and allowing her a fixed monthly sum for her and their support.

*Code Civ. Pro. ¿ 1766.

Sibley v. Equitable Life Assurance Co.

SIBLEY, AS ASSIGNEE, ETC. v. EQUITABLE LIFE ASSURANCE COMPANY OF THE UNITED STATES, ET AL.

SUFERIOR COURT OF THE CITY OF NEW YORK, GENERAL TERM, OCTOBER, 1888.

$ 820.

Interpleader—when interest added to demand, upon ordering.

Where, in an action against an insurance company and others to recover from the company the amount of an endowment policy of insurance, the company sought to interplead in its stead the other defendants who claimed the same moneys and of whose rights the insurance company was ignorant,-Held, that it was error to direct interpleader upon the payment of the amount called for by the policy, without interest; that the court had no power by an order to discharge the defendant from liability to the plaintiff without the payment of the amount which was due upon the policy and interest from the day that it became due; that interest was as much a part of the demand of the legal owner of the policy as the amount required to be paid by the policy; that if the company would relieve itself from the obligation to pay interest it should have commenced an action of interpleader; and if it had an equitable defense against the claim for interest it must remain a party to the action and set forth said defense by answer.

(Decided October 26, 1888.)

Appeal by plaintiff from an order of the special term of the New York superior court, directing an interpleader upon the payment by the defendant of $10,142 to abide the event of the action.

The action was brought by the plaintiff as assignee

Sibley v. Equitable Life Assurance Co.

in bankruptcy of the insured to recover the amount of an endowment policy which matured on October 1, 1887. The defendants were the insurance company, the bankrupt insured, and the latter's daughter, claiming under an agreement, which the plaintiff sought to set aside as fraudulent. Several months after the maturity of the policy and the commencement of the action, the defendant, the insurance company, obtained an order discharging it from liability on the payment of the amount of the policy into court. The plaintiff appealed, claiming that interest on the amount of the policy, $10,142, must also be paid before the insurance company would be discharged from liability.

Roger Foster, for the plaintiff-appellant.

The court erred in releasing the insurance company from liability for interest. "Where the principal is to be paid at a specified time, the law has always implied an agreement to make good the loss arising from a default by the payment of interest." Rensselaer Glass Factory v. Reid, 5 Cow. 587, 611; Robinson v. Bland, 2 Burr. 1077, 1086; McLaughlin v. Washington Co. Mutual Ins. Co., 23 Wend. 525. A stakeholder is never relieved from liability unless he has been enjoined from payment of the fund into court. Chauncy v. McKnight, 2 Selden's Notes, 60; Potter v. Gardner, 5 Pet. (U. S.) 718, 722. The insurance company might have relieved itself. from liability for interest by bringing an action of interpleader and payment into court as soon as the policy matured, but a bill of interpleader by an insurance company is demurrable unless it contains an offer to pay into court interest as well as the amount originally due. Bignold v. Andland, 11 Simons 23. So in Patterson . Perry, 14 How. Pr. 505, 506, a motion for an order of interpleader under the Code was denied except upon condition that the defendant pay interest as well as principal into court. Equity has no discretionary power to relieve

Sibley v. Equitable Life Assurance Co.

a defendant from liability for interest upon a demand that bears interest at law.

Alexander & Green, for the Insurance Company, respondent.

Plaintiff is not entitled to interest on the fund. The plaintiff could only have been entitled to interest if the relation of debtor and creditor existed between them and the insurance company, and the latter was in default to him. This could not be, so long as the assignment to set aside which the plaintiff brought this suit, was still in force. Adams v. Fort Plain Bank, 36 N. Y. 255; Rensselaer Glass Co. v. Reid, 5 Cow. 587. The most that can be claimed is that the assurance society is the trustee of a fund, and the rule is well settled that interest is not chargeable against a trustee where there is no unreasonable delay in applying the trust moneys and where he does not apply it to his own use or mingle it with his own funds. Minuse v. Cox, 5 Johns. 448; 1 Perry on Trusts, § 468, and cases cited. Plaintiff, by commencing this action and joining the other claimants with the insurance company as defendants, prevented the company from obtaining relief by an order under section 820 of the Code. A bill of interpleader could not have been filed while this action was pending.

PER CURIAM. -The complaint demands judgment against the defendant, the Equitable Assurance Company, for the amount due under the policy of insurance set up in the complaint, with interest thereon from October 1, 1887.

The defendant presented a petition to the court whereby it admits that the amount named is due under the said policy, and that it has been due since October 1, 1887; that when said amount became due, defendant was ready and willing to pay the same to the person rightly entitled thereto, but that it is ignorant of the rights of the several parties to the action, and cannot with safety

Sibley . Equitable Life Assurance Co.

pay the same to any person; and on that petition the court ordered that the said corporation may pay the amount due, without interest, into the Mercantile Trust Co., to the credit of this action, and that upon said payment the said defendant be relieved and discharged from all liability to the plaintiff or any of the defendants herein.

We do not think that the court had power by an order to discharge the defendant from liability to the plaintiff without payment of the amount which was due upon the policy, and interest from October 1, 1887. This interest was, under the complaint in this action, as much a part of the demand of the legal owner of the policy of insurance, as the amount required to be paid by the policy.

If the company desired to relieve itself from the obligation to pay interest, it could have commenced an action. for an interpleader. Instead of commencing such an action, the company, after having refused to pay the plaintiff, did nothing until it was sued, and in the mean time retained the money. So, if in point of fact the company has an equitable defense against plaintiff's claim for interest, it must remain a party to the action and set forth such defense by answer.

As the case stands at present the order should only be granted on the payment into court of the amount admitted to be due, with interest up to the time of payment.

The order appealed from should be modified by requiring the defendant to pay the sum of $10,142, with interest thereon from October 1, 1887, to the date of the payment of the principal sum. The appellant should have $10 costs and disbursements of this appeal.